Upington - After more than five years awaiting trial, Jabulani Radebe and his co-accused, Mthuli Dube, were finally released on bail recently by the Kuruman Regional Court in the Northern Cape.
After 89 postponements - including the retirement of Upington Regional Court magistrate Christo Jacobs in the middle of the proceedings - the two men will now spend Christmas with their families while awaiting a new trial date next year.
Both first-time offenders, Dube and Radebe are accused of taking part in a Kuruman cash-in-transit robbery involving more than R200 000 in 2008.
“I was in the witness stand when magistrate Jacobs retired,” recalls Dube. “The last time I saw him was on the 2nd February 2011. After that, the trial came to a standstill.”
Though Regional Court president Khandilizwe Nqadala ordered the retired magistrate to return to conclude the case, Jacobs has not yet done so. For the past two years, there have been repeated postponements and the matter was never heard.
According to the Magistrate’s Commission, a magistrate may not retire if they still have cases on their roll. If a magistrate is suspended, retrenched or dies, cases have to be reheard from scratch.
As in Radebe and Dube’s case, this can add months to an awaiting-trial detainee’s time in detention.
Dube has kept a diary from the day he was arrested, documenting every date and postponement since his incarceration. With help from the Wits Justice Project (WJP) – who have followed the case since early last year – Dube and Radebe sought advice from lawyers at the Centre for Applied Legal Studies.
The men were released on bail in terms of the new section 49G legislation – 49G of the Correctional Services Act, 11 of 1998 – which means a remand detainee may not be detained for a period exceeding two years without the case being brought to the court’s attention.
The court then reassesses the detention and bail conditions of the accused given the amount of time already spent in detention. Clearly, Radebe and Dube’s case qualified.
However, when Dube and Radebe were eventually placed on the high court roll for the 49G hearing, they were told that their original charge sheet and transcripts were missing and the case came to a halt once again. “The Kimberly High Court has been waiting for this charge sheet since January this year and the entire time we had to stay in prison waiting for the charge sheet to show up,” Dube told the WJP on his release in Joburg this week.
As a result, the two men were forced to await their hearing behind bars in both the Kuruman and Upington correctional centres.
“The prison was so crowded, there were gangsters and people stealing from each other,” Dube said.
Many prisoners suffer from TB and HIV, and prison conditions are inhumane.
“We would sit there for 23 hours of the day doing nothing. When we got the hour to exercise, I used it to call my wife and to ask her to get hold of people who could help us with our situation.”
At the time of going to press, no comment had been received from the Department of Justice.
* Manaleng and Herrmannsen work for the department of journalism’s Wits Justice Project at the University of the Witwatersrand.